HER MAJESTY'S ATTORNEY GENERAL IN AND FOR THE STATE OF NEW SOUTH WALES v HAYDEN SUPREME COURT OF NEW SOUTH WALES GLEESON CJ, MAHONEY AND COLE JJA 23 November 1994, 23 November 1994 [1994] NSWCA 129 CONTEMPT OF COURT — Penalty hearing — abusive and threatening conduct towards witness — considerable record including for similar offences — psychiatric evidence taken — imprisonment for six months. The opponent, who had a bad record which included interference, with witnesses in court proceedings, was convicted of contempt of court in the form of abusive and threatening conduct towards a potential witness. Psychiatric evidence showed that he was not psychotic, but suffered from a complex personality disorder - HELD - An appropriate penalty was imprisonment for six months. ORDERS Opponent sentenced to imprisonment for a fixed term of six months to date from 13 October 1994. Gleeson CJ On 13 October 1994 the court convicted the opponent of contempt ofcourt and, refusing bail in the meantime, adjourned the matter to today for further evidence and hearing on the question of penalty. The facts relating to the contempt are set out in the judgment of 13 October 1994 and it is unnecessary to repeat the detail. It suffices for present purposes to say that on 20 January this year at the Local Court at the Downing Centre in Sydney the opponent abused, threatened and assaulted a man named Andrew David Duell who was waiting to give evidence, or possibly to give evidence, in certain proceedings in the Local Court in which the opponent's mother was involved and in which the opponent's was appearing as the representative of his mother. The judgment of 13 October records the events that gave rise to the charge of contempt, the abusive conduct in which the opponent engaged towards Mr Duell and the manner in which the opponent swung his fists towards Mr Duell's face and said to him, amongst other things, "You don't think you're going to make it home tonight, do you?" What the judgment of 13 October does not record is that when the opponent was interviewed by the police in relation to the matter later, he denied the account of events that was given by Mr Duell and by other eye witnesses, and said that the only altercation that had taken place between himself and Mr Duell was one that arose out of homosexual advances Mr Duell allegedly made to him. The opponent now admits that to be false. The evidence also showed that in a later conversation with a person connected with the prosecuting authorities the opponent, in effect, expressed the opinion that the matter was trivial and that the likely outcome was to be a modest pecuniary penalty. The court has before it a pre-sentence report prepared by Ms Pallai and a psychiatric report, tendered by counsel for the opponent, being a report of Dr Thomas Clark dated 22 November 1994. The court also has details of the opponent's lengthy criminal history. 2 UNREPORTED JUDGMENTS The offences of which he has been convicted in the past and which have given rise to a number of terms of imprisonment include the following. He has convictions for malicious injury and for assaulting police, for stealing and unlawful entry, for malicious damage and offensive language. None of those individually appear to be of great seriousness. On the other hand, in June 1987 he was convicted of possessing a firearm with intent to commit an indictable offence. He was given a deferred sentence on recognisance but was later found to be in breach of the recognisance, as a result of which he was sentenced to five years' imprisonment with a non-parole period of eighteen months. In June 1991 he was convicted of- thirty charges of using the telecommunications system to harass an individual. The offences of possessing a firearm and of harassment concern what has been described in the evidence as an obsessive hostility entertained by the opponent to a Dr Norman who treated him and whose treatment is regarded by the opponent as having been negligent. The conduct of the opponent towards Dr Norman was such as would have been likely to terrorise the doctor. The opponent was also convicted in 1992 of two counts of attempting to pervert the course of justice and ten counts of obtaining money by deception. The charges of attempting to pervert the course of justice related to events that occurred in about 1987. As a result of the convictions the opponent was sentenced to imprisonment which involved a minimum term of nine months. What is of significance in relation to the present matter is that those charges arose out of interference by the opponent with witnesses in proceedings that were pending against him. The psychiatric report and the pre-sentence report both indicate that the opponent is the kind of person with whom the criminal justice system necessarily finds it awkward to deal. In one sense the principal victim of much of the opponent's behaviour may be his mother, who gave evidence before us this morning. The opponent has had a sad personal history and has, for a number of years, been undergoing treatment of one kind or another. According to Dr Clark he has a history of obsessive compulsive behaviour. This has manifested itself in the past in relation to his interaction with Dr Norman, and also in relation to compulsive gambling. He has no signs of psychotic disorder but he undoubtedly suffers from what Dr Clark has described as a longstanding depressive disorder. His personality is said by Dr Clark to fit the pattern of an obsessive compulsive personality disorder. He has taken various forms of anti-depressant medication, with varying consequences. The medication that he was taking at the time of the events of January this year was different from the medication he is presently taking and he has said in evidence that he thinks the medication he is presently taking has produced a substantial change in his personality and his attitudes. For my part I find that unpersuasive. Dr Clark said: "Tt is possible that he suffered side effects from the Prozac which made his behaviour more erratic but it is most probable that it is Cameron's underlying disorder that causes his impulsiveness rather than the medication." We have before us, as part of the pre-sentence report, reference to an assessment made by Dr McMurdo. That assessment is recorded as follows: "Dr McMurdo, who has known and treated Mr Hayden for approximately ten years, diagnosed Mr Hayden as suffering from a personality disorder of a complex WAER MAJESTY'S ATTORNEY GENERAL IN AND FOR THE STATE OF NEW SOUTH WALES v HAYDEN (Gleeson CJ) nature with elements of body dysmorphic disorder; an obsessive compulsive disorder and sociopathy. He stated that Mr Hayden lacks insight into what is socially acceptable." The pre-sentence report which gives a deal of information about family background of the opponent, his education and his employment history, records the fact that the opponent has had an attitude towards litigation and the court system which appears to draw him to it. Dr McMurdo is recorded in the report as having said: "Mr Hayden undertook to beat the system and is prepared to go to gaol for it. He is like an amateur boxer who takes on the champion." The report also says: "In the interview Mr Hayden impressed as being intelligent, without insight into his behaviour and unable to use reason to direct his actions." The strong impression created by the conduct of the opponent in this court and in the evidence that he has given in these proceedings is that he has, in the past, lacked, and that he continues to lack insight into his behaviour and into the consequences of his behaviour. He has told the court that he is remorseful and that the change in medication has reformed the attitudes that have brought him into trouble in the past. For my part, I do not accept that evidence. As I have said, it seems perfectly clear that he lacks insight into his behaviour and that he has suffered, and continues to suffer, from disorders of the kind referred to by Dr Clark and Dr McMurdo and observed by the witness who prepared the pre-sentence report. Without question a person who suffers from such disorders is deserving of sympathy. Equally, however, the objective seriousness of the conduct in which the opponent has engaged needs to be taken into account and marked. Furthermore, although it is no part of the function of this court to add to the punishment that has already been inflicted on the opponent by reason of his past conduct, his past conduct and his very bad record is a matter to be taken into account in determining what is an appropriate penalty to impose in relation to the contempt of court with which we are concerned. One thing that is indicated by his past record is that what occurred on the occasion presently in question cannot be regarded as an aberration or as conduct out of character with the opponent. On the contrary, the conduct appears to be in character. Our attention has been drawn to the fact that he is, whilst in prison, under protection, and that is a matter to be taken into account in his favour because the circumstances in which people serve imprisonment under protection generally are harsher than those which bear upon ordinary inmates. It was observed on his behalf that the attack upon or the threats to Mr Duell were more in the nature of an outburst resulting from frustration than a carefully planned or pre-meditated occurrence. That is true, although it is an observation to be considered against the background of the history of the opponent to which reference has already been made. Elements of both general and personal deterrence are important in the present case. The need for personal deterrence is evident from the history of the opponent. In relation to the issue of general deterrence I would adopt and repeat the observations made by Priestley JA in the case of European Asia Bank AG v Wentworth (1986) 5 NSWLR 445 at 463 where his Honour said: "It seems to me that courts must do everything reasonably possible to protect the integrity of their own processes, including the safety of persons lawfully present upon court precincts in connection with litigation." 4 UNREPORTED JUDGMENTS In my view the appropriate penalty in the present case is the imposition of a term of imprisonment. That term should run from 13 October 1994, which was the date upon which the opponent was taken into custody. I would propose that the court should sentence the opponent to a fixed term of imprisonment for six months commencing on 13 October 1994 and ending on 12 April 1995. Mahoney JA I agree. Cole JA I also agree. GLEESON CJ: The order of the court is that the opponent is sentenced to a fixed term of imprisonment for six months commencing on 13 October 1994 and ending on 12 April 1995. The reason for a fixed term rather than the imposition of a minimum term with an additional term is the relative brevity of the term of imprisonment involved and the circumstance that this is not a case in which anything would appear to be gained by subjecting the opponent to a period of probation or parole following his release. Opponent sentenced to imprisonment for a fixed term of six months to date from 13 October 1884. Representation: Counsel for the appellant: RN Howie QC Solicitors for the appellant: W Grant Crown Solicitors Counsel for the respondent: JC Papayanni Solicitors for the respondent: Legal Aid Commission